18Council may require public open space

18 Council may require public open space S. 18(1AA) inserted by No. 3/2013 s. 87(1), amended by No. 35/2015 s. 16(1). (1AA) Subject to subsection (1AB), this section applies if a requirement for public open space is not specified in the planning scheme. S. 18(1AB) inserted by No. 35/2015 s. 16(2), substituted by No. 7/2018 s. 17. (1AB) This section does not apply to a parcel of land to which a planning scheme applies if— (a) the planning scheme includes an approved infrastructure contributions plan that applies to that parcel of land; and (b) on the development of the parcel of land— (i) any land in that parcel of land specified in the approved infrastructure contributions plan to be set aside as public open space must be provided as part of the land component of an infrastructure contribution imposed under the approved infrastructure contributions plan; or (ii) a land equalisation amount (within the meaning of section 46GF of the **Planning and** **Environment Act 1987**) will be imposed under the approved infrastructure contributions plan to pay for any land to be set aside for public open space under the plan; and (c) the land in the parcel of land is of a type of land specified in a direction of a Minister pursuant to section 46GJ(2)(u) of the **Planning and Environment Act** **1987** as being land to which this subsection applies. S. 18(1) amended by Nos 47/1989 s. 14(1)(a), 48/1991 s. 14(1)(a)(b), 57/1993 s. 9(1), 3/2013 s. 87(2). (1) A Council acting as a responsible authority or a referral authority under the **Planning and Environment Act 1987** may require the applicant who proposes to create any additional separately disposable parcel of land by a plan of subdivision to— S. 18(1)(a) substituted by No. 34/1994 s. 3(1). (a) set aside on the plan, for public open space, in a location satisfactory to the Council, a percentage of all of the land in the subdivision intended to be used for residential, industrial or commercial purposes, being a percentage set by the Council not exceeding 5 per cent; or S. 18(1)(b) amended by No. 48/1991 s. 14(1)(c), substituted by No. 34/1994 s. 3(1). (b) pay or agree to pay to the Council a percentage of the site value of all of the land in the subdivision intended to be used for residential, industrial or commercial purposes, being a percentage set by the Council not exceeding 5 per cent; or S. 18(1)(c) substituted by No. 47/1989 s. 14(1)(b), amended by No. 34/1994 s. 3(2). (c) do a combination of (a) and (b) so that the total of the percentages required under (a) and (b) does not exceed 5 per cent of the site value of all the land in the subdivision. S. 18(1A) inserted by No. 48/1991 s. 14(2). (1A) The Council may only make a public open space requirement if it considers that, as a result of the subdivision, there will be a need for more open space, having regard to— (a) the existing and proposed use or development of the land; (b) any likelihood that existing open space will be more intensively used after than before the subdivision; (c) any existing or likely population density in the area of the subdivision and the effect of the subdivision on this; (d) whether there are existing places of public resort or recreation in the neighbourhood of the subdivision, and the adequacy of these; (e) how much of the land in the subdivision is likely to be used for places of resort and recreation for lot owners; (f) any policies of the Council concerning the provision of places of public resort and recreation. S. 18(1B) inserted by No. 57/1993 s. 9(2). (1B) If a Council requires an applicant to pay or agree to pay an amount under subsection (1)— (a) the amount must be paid before the Council issues its statement of compliance; and (b) subject to paragraph (a), the time for payment of the amount is at the applicant's discretion; and (c) despite paragraph (a), the whole or any part of the amount may be paid after the Council issues its statement of compliance if the applicant and the Council so agree under section 21(1)(b)(ii). S. 18(2) substituted by No. 47/1989 s. 8(1)(a), amended by No. 34/1994 s. 3(3). (2) In the case of a staged subdivision using the procedure under section 37— S. 18(2)(a) amended by No. 48/1991 s. 14(3). (a) if an open space requirement is to be made, it must be made for the master plan, but may be expressed to apply to any particular stage or stages; and (b) if the requirement applies to the second or a subsequent stage, the location of the open space need not be defined except on the plan for that stage; and (c) if the requirement applies to the second or a subsequent stage and is a requirement to pay money, the total amount to be paid may be apportioned between particular stages, and the proportion need not be specified except for the plans of the appropriate stages. (3) Land intended to be used for residential, industrial or commercial purposes includes land set aside on the plan of subdivision for roads or other reserves incidental or ancillary to the use of the land for residential, industrial or commercial purposes. (4) The applicant may agree with the Council to set aside or pay a percentage other than the set percentage. S. 18(5) amended by No. 48/1991 s. 14(4). (5) A public open space requirement may be made only once in respect of any of the land to be subdivided whether the requirement was made before or after the commencement of this section, unless subsection (6) applies. (6) A further open space requirement may only be made when a building is subdivided and a public open space requirement was not made under section 569H of the **Local Government Act 1958** or section 21A of the **Building Control Act 1981** when the building was constructed. (7) If any amount is paid to the Council under this section and the Council is satisfied that it is no longer intended to subdivide the land to create any additional lot, the Council may refund the amount paid to it. (8) A public open space requirement is not required if— (a) the subdivision is of a class of subdivision that is exempted from the public open space requirement by the planning scheme; or (b) the subdivision is for the purpose of excising land to be transferred to a public authority, Council or a Minister for a utility installation; or S. 18(8)(c) amended by No. 48/1991 s. 14(5). (c) the subdivision subdivides land into two lots and the Council considers it unlikely that each lot will be further subdivided. S. 18A inserted by No. 3/2013 s. 88.